We live in an age where everything seems calculable. Calories burned per minute on a treadmill. Likes per post on social media. Even happiness, some might argue, can be quantified by algorithms. So it’s no surprise that in the realm of employment law, there’s a longing for a neat and tidy formula — a simple equation to determine reasonable notice periods in wrongful dismissal cases in Canada.
Imagine a world where you could input an employee’s age and years of service into a magical calculator, press a button, and out pops the perfect notice period. No debates, no legal fees, just a tidy number to write on a cheque. It sounds appealing, doesn’t it?
For years, many have clung to the rule of thumb that suggests “one month of notice for every year of service.” It’s straightforward, easy to remember, and seems fair at a glance. But here’s the rub: it’s wrong. Not just slightly off, but fundamentally flawed as a concept. (Though many of us will invariably use it as a starting point.)
After spending decades poring over case law, watching judges wrestle with the nuances of each situation, I’ve come to a realization: Human lives are too complex to be distilled into a one-size-fits-all formula for the workplace.
Consider this: two employees, both 50 years old, each with 10 years of service. One works as a senior executive in a booming tech industry; the other is a manual labourer in a declining manufacturing sector. According to the simplistic formula, they’d receive the same notice period. But is that fair?
The courts don’t think so, and neither should we.
Back in 1960, a case known as Bardal v. The Globe and Mail Ltd. set the stage for how Canadian courts approach reasonable notice. The judge didn’t rely on a mathematical formula. Instead, he outlined several factors to consider — now famously known as the Bardal factors. These include the character of the employment, the length of service, the age of the employee, and the availability of similar employment given the employee’s experience, training, and qualifications.
In essence, the Bardal factors recognize that people are more than numbers on a spreadsheet. They’re individuals with unique circumstances, aspirations, and challenges. The economy isn’t static; industries rise and fall. Skills that are in high demand today might be obsolete tomorrow. The job market in Toronto is different from that in Moose Jaw. A 60-year-old might find it harder to secure new employment compared to a 30-year-old, even with identical resumés.
Think about the tech boom and bust cycles. One moment, software developers are the darlings of the job market; the next, automation threatens their roles. Or consider industries like print journalism or coal mining — sectors that have seen significant declines. Employees in these fields face different realities when dismissed than those in growing industries.
The Bardal approach allows for these nuances. It provides a framework that judges can use to weigh all relevant factors, ensuring that the notice period is fair and reasonable to both sides in the specific context of each case.
Yes, this method lacks the seductive simplicity of a plug-and-play formula. It requires careful analysis, empathy, and sometimes, tough judgment calls. But that’s precisely what justice demands.
There’s also the human element. Behind every dismissal is a story — a person facing uncertainty, worry, and upheaval. Reducing their situation to a mere equation feels, well, inhumane. It overlooks the psychological impact of losing a job, especially after long service. It ignores the ripple effects on families, communities, and even their self-worth.
Moreover, the legal landscape is ever-evolving. Precedents shift, societal values change, and what was deemed reasonable notice a decade ago might not hold today. A rigid formula can’t adapt to these changes, but a principles-based approach like the Bardal factors can and does.
Some might argue that this leads to unpredictability. Businesses crave certainty, and employees want to know where they stand. Isn’t there merit in having clear-cut rules? Predictability certainly has its advantages. But at what cost? A system that sacrifices fairness for simplicity may be efficient, but it’s not just. The goal should be a balance — a method that’s as consistent as possible while still allowing for individual circumstances.
Perhaps instead of searching for a mythical calculator or looking to AI to solve the problem, we should focus on better educating employers and employees about the factors that influence notice periods. Open dialogues, accessible legal resources, and proactive planning can go a long way in managing expectations and reducing disputes.
We can measure calories, count likes, and even try to quantify happiness. But when it comes to human livelihoods, perhaps it’s wise to accept that some things are too important for shortcuts and algorithms. The Bardal factors provide something far more valuable: a thoughtful, nuanced approach that respects the individuality of each person and situation.
